Lower Village cell phone tower case goes to court

KENNEBUNK — The fate of a cellular phone tower that some Lower Village residents say was erected last year without their full knowledge is in the hands of a York County Superior Court judge.

Casey Conley

KENNEBUNK — The fate of a cellular phone tower that some Lower Village residents say was erected last year without their full knowledge is in the hands of a York County Superior Court judge.

A lawsuit filed in the fall by Mitar Khalsa, of 6 School Lane, contests an Oct. 13, 2010 decision by the town's Zoning Board of Appeals, which overturned an earlier ruling that disallowed the tower and its related structures.

Khalsa and several other neighbors argue that they were not properly notified that an existing 55-foot radio antenna was being replaced with a 124-foot cellular phone tower disguised as a flagpole. They say a town notice they received referred to the construction as a flagpole, and not a cellular tower twice as high as the original structure.

Khalsa and her attorney, Patrick Venne, a recent graduate of the University of Maine School of Law who took the case pro bono, are hoping Judge Arthur Brennan agrees that the tower doesn't conform with town ordinances and should be taken down.

"We feel like the previous (zoning board) decision is the right decision," Khalsa said in a telephone interview a day after her April 21 hearing at York County Superior Court.

In a court filing, Venne acknowledged that residents failed to contest the tower within the 30-day window outlined in the town ordinance. However, he argues that state law allows for "good cause" exemptions in these situations.

"Although the normal time for litigating an appeal of a permitting decision, like that at issue here, is prior to the start of construction, when necessary to prevent a 'flagrant miscarriage of justice,' courts will recognize a 'good cause' exception to strict enforcement of a town's fixed appeal period," Venne wrote.

The tower, built by Navigator Properties — also known as Mariner Tower — stands on land owned by Village Marketplace LLC. Mariner leased the property from Village Marketplace and submitted the application for a building permit for the tower in November 2009.

The permit was granted by town Code Enforcement Officer Paul Demers. The application did not go before the Planning Board or Site Plan Review Committee because the tower itself was replacing an existing antenna structure — a process that's allowed under town codes.

Maine Sen. Barry Hobbins, D-York County, is the Saco lawyer representing AT&T Mobility, one of three mobile phone providers that uses the tower to transmit signals. He argued that the town followed its own rules for building the tower, and that residents failed to contest the tower within the mandatory 30-day window. The case, he said, seems cut and dry.

"Navigator did not begin construction until May 10 (2010), and that was well after the 30-day appeals people provided in the ordinance," Hobbins said.

Natalie Burns, the town's attorney, couldn't be reached for comment.

Chris Smith is the owner of Ocean Exposure and a tower abutter. He filed an appeal with the zoning board Aug. 4, saying the three sheds being built at the base of the tower were non-conforming.

At a Sept. 20 meeting, the board upheld Smith's appeal and included the tower in its decision. That decision was the overturned in October, triggering Khalsa's appeal.

Khalsa said residents weren't properly notified about what was being built, and therefore didn't consider an initial appeal.

"It was a vague abutter notice, so vague it was almost misleading," she said.

Brennan did not issue a ruling at the April 21 court hearing. He said a response is likely some time in May.

Khalsa said she learned her lesson from the tower episode, and plans to be more vigilant about what's happening in her neighborhood moving forward. She urged other residents to do the same.

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